Category: Access

Have you obtained an access order from Court but you’re being denied access to the child?

You may need to take legal action to enforce your Court Order.

Section 60 of the Children and Family Relationships Act 2015 came into law in Ireland on January 18th, 2016. It amends the Guardianship of Infants Act, 1964 and provides as follows:

60. The Act of 1964 is amended by the insertion of the following sections after section 18:

“Enforcement orders

18A. (1) A guardian or parent of a child who has been—
(a) granted, by order of the court made under this Act, custody of, or access to, that child, and
(b) unreasonably denied such custody or access by another guardian or parent of that child,
may apply to the court for an order (‘enforcement order’) under this section.
(2) An application under subsection (1) shall be on notice to each guardian and parent of the child concerned.
(3) Subject to subsection (4), the court, on an application under subsection (1), shall make an enforcement order only where it is satisfied that—
(a) the applicant was unreasonably denied custody or access, as the case may be, by the other parent or guardian,
(b) it is in the best interests of the child to do so, and
(c) it is otherwise appropriate in the circumstances of the case to do so.
(4) An enforcement order may provide for one or more than one of the following:
(a) that the applicant be granted access to the child for such periods of time (being periods of time in addition to the periods of time during which the applicant has access to the child under the order referred to in subsection (1)(a)) that the court may consider necessary in order to allow any adverse effects on the relationship between the applicant and child caused by the denial referred to in subsection (1) to be addressed;
(b) that the respondent reimburse the applicant for any necessary expenses actually incurred by the applicant in attempting to exercise his or her right under the order referred to in subsection (1)(a) to custody of, or access to, the child;
(c) that the respondent or the applicant, or both, in order to ensure future compliance by them with the order referred to in subsection (1)(a) do one or more than one of the following:
(i) attend, either individually or together, a parenting programme;
(ii) avail, either individually or together, of family counselling;
(iii) receive information, in such manner and in such form as the court may determine on the possibility of their availing of mediation as a means of resolving disputes between them, that adversely affect their parenting capacities, between the applicant and respondent.
(5) An enforcement order shall not contain a provision referred to in subsection (4)(a) unless—
(a) the child, to the extent possible given his or her age and understanding, has had the opportunity to make his or her views on the matter known to the court, and
(b) the court has taken the views (if any) of the child referred to in paragraph (a) into account in making the order.
(6) Where the court, on an application under subsection (1), is of the opinion that the denial of custody or access was reasonable in the particular circumstances, it may—
(a) refuse to make an enforcement order, or
(b) make such enforcement order that it considers appropriate in the circumstances.
(7) This section is without prejudice to the law as to contempt of court.
(8) In this section—
‘family counselling’ means a service provided by a family counsellor in which he or she assists a person or persons—
(a) to resolve or better cope with personal and interpersonal problems or difficulties relating to, as the case may be, his, her or their marriage, civil partnership, cohabitation or parenting of a child, or
(b) to resolve or better cope with personal and interpersonal problems or difficulties, or issues relating to the care of children, where the person or persons is or are affected, or likely to be affected, by separation, divorce, the dissolution of a civil partnership or the ending of a relationship of cohabitation;
‘family counsellor’ means a person who has the requisite skill and judgment to provide family counselling;
‘parenting programme’ means a programme that is designed to assist (including by the provision of counselling services or the teaching of techniques to resolve disputes) a person in resolving problems that adversely affect the carrying out of his or her parenting responsibilities.

Person presumed to have seen order of court

18B. A person shall be deemed to have been given or shown a copy of an order made under this Act if that person was present at the sitting of the court at which such order was made.
Power of court to vary or terminate custody or access enforcement order
18C. (1) The court may, on application by a person granted by order of the court made under this Act, custody of, or access to a child, make an order varying or terminating an enforcement order or any part of that order.
(2) The court may, in proceedings to vary or terminate a custody or access order, in those proceedings vary or terminate an enforcement order that relates to that custody or access order.

Enforcement of custody or access order

18D. (1) Where a guardian or parent of a child—
(a) has been granted, by order of the court made under this Act, custody of, or access to that child, and
(b) fails, without reasonable notice to another guardian or parent of the child, to exercise the right concerned,
the other parent or guardian of the child may apply to the court for an order requiring the first-mentioned guardian or parent to reimburse to the second-mentioned guardian or parent any necessary expenses actually incurred by that guardian or parent as a result of the failure of the first-mentioned guardian or parent to exercise that right.
(2) In this section, and section 18A, ‘necessary expenses’ include the following:
(a) travel expenses;
(b) lost remuneration;
(c) any other expenses the court may allow.”.

What This Means

This means that you can make a formal complaint to the District Court Clerk who can then issue a breach of access summons (form 58.29 District Court, schedule C) to the party failing to abide by the access order.

It is presumed, also, that the non-compliant party has seen the Court order granting access if he/she was present at the Court sitting where the order was made.

The Court can then make an enforcement order if it decides that you were unreasonably denied access.

The Court can also make an order that you be reimbursed for necessary expenses-travel and lost remuneration- in attempting to avail of access, order that either or both parties attend a family counselling/parenting programme, or vary/terminate the access order.

In other words, the Court has wide discretion to make whatever order it sees fit, having regard to the welfare of the child.

The Court can also find the non-compliant party in contempt of Court and impose whatever penalty it sees fit.

Guardianship and Unmarried Fathers

Unmarried fathers will automatically become guardians of their children if they meet a cohabitation requirement.

An unmarried father who cohabits for 12 months with the child’s mother, including 3 months following a child’s birth, will automatically become the child’s guardian.

This provision is not retrospective, so guardianship will only be acquired automatically where the parents live together for at least 12 months after 18 January 2016.

Other Provisions

-A person other than a parent may become the child’s guardian, if married to or in a civil partnership with the child’s parent or if s/he has cohabited with the child’s parent for over 3 years and if the person has shared responsibility for child’s day-to-day care for more than 2 years.

It will also be possible for the court to appoint a person as a child’s guardian if that person has been responsible for the child’s day-to-day care for over a year and if no parent or guardian is willing to assume the responsibilities of guardianship.

The powers of court-appointed guardians will generally be limited to decisions on day-to-day matters. The decisions reserved to full guardians are decisions on the child’s place of residence, his / her religious, spiritual and cultural upbringing and on medical matters, placement for or consent to adoption of a child and on the issue of a passport for a child.

It will be possible for a guardian parent to nominate a temporary guardian for his / her child through a court-based process if the parent is suffering from serious illness or injury which would prevent him or her from exercising his or her guardianship responsibilities. The court will appoint the temporary guardian and will have the power to limit that person’s responsibilities, taking account of any limitations imposed by the parent.

-A parent’s spouse, civil partner or cohabitant of not less than 3 years will be able to apply for custody where s/he has shared parenting of the child for 2 years. A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

-Relatives of a child such as grandparents or those acting in loco parentis will be able to apply to have access to children more easily in the context of relationship breakdown.

-A child’s best interests will be the paramount consideration for the court in proceedings on guardianship, custody or access.

-The court can impose enforcement orders where a parent or guardian has been denied custody or access. These may include requiring that he or she get compensatory time with the child, that his or her expenses be reimbursed or that one or both parties attend parenting programmes, family counselling or receive information on mediation.

-A child co-parented by civil partners will have the same protections as are enjoyed by a child of a family based on marriage. The court will also be able to order a civil partner to pay maintenance for the support of a dependent child of the civil partners, including where the child is the child of only one of the civil partners.

-A maintenance responsibility may be imposed on a cohabiting partner for a partner’s child where the partner is a guardian of the child.

The relevant commencement order is the Children and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016.